“No Freeman shall be taken or imprisoned, or be disseised [unlawfully dispossessed] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.”

So reads Clause 29 of the 1297 Magna Carta, one of the few bits of the foundational document that still remain on statute in England. More than seven centuries later, it still makes for inspiring reading. Indeed, the words exemplify the pure and noble political project that we imagine to be at the heart of all Western constitutional manifestos, including the 1982 Canadian Charter of Rights and Freedoms, whose birthday we celebrate Tuesday.

Unfortunately, these romantic notions do not survive historical scrutiny. And it is worth using this 30th-anniversary moment to demystify some of the notions that surround the Western constitutional tradition.

The Great Charter of 1215 was itself an acutely political document: The barons who wrote it mostly were interested in tying down King John, seizing his estates and putting someone else on the throne. The idea that these feudal nobles sought to create some sort of proto-democracy is entirely a creation of latter mythology. Great Britain did eventually become a free and democratic country, but it did so without a written constitution. And the attempt to impose one through the back door of article 46 of the European Convention on Human Rights has been confusing and unpopular.

It was really the American Constitution of 1789, and the amendments and jurisprudence that followed it, which created the modern template for a national “sacred text” that stands above normal day-to-say- legislation, and sets out the fundamental liberties of citizens, creates an independent court system with the power of judicial review and establishes boundaries between different levels of government. It is in this American image that Canada’s Charter was created — a considerable irony given the great extent to which Canadian nationalists harp on the Charter as an icon of Canadian values and identity.

In fact, many Canadians (Liberal partisans, in particular) have developed an almost spiritual reverence for the Charter and the men who brought it into being. This fetish is excessively sentimental: As with the barons of King John’s era, Pierre Trudeau had his own cynical reasons for bringing the Charter into being — including cementing social progressivism, and diluting Quebec’s claim of Canadian biculturalism through the free-for-all of multiculturalism and individual rights.

Moreover, it’s debatable whether the Charter of Rights and Freedoms has actually improved the stock of liberty in this country. At the time of drafting, conservative critics worried that the Charter would become a crude tool for ramming social-engineering into law over the objections of legislators and the citizens who elected them. As the examples of abortion, gay marriage, capital punishment, safe-injection sites, and refugee rights show, those conservative critics were proven entirely correct.

What’s worse, the government of Canada actively turbo-charged the anti-democratic aspects of the Charter by providing taxpayer funding to groups seeking to create new rights through litigation. While the Court Challenges Program (abolished by Stephen Harper’s government in 2006) was formally open to a wide variety of applicants, in practice it became a subsidy to a small number of left-wing activist groups seeking (often successfully) to advance feminism and gay rights. Even those of us who agree with these causes (including me) would argue that they would have enjoyed more legitimacy if decided by legislatures, as opposed to judicial fiat.

Our experiment over the last 30 years shows that it will always be the cultural understandings and political leanings of the people charged with interpreting a constitution, not the constitution itself, that will dictate its effect. This is especially true of our own Charter, which was conceived in the same utopian, activist spirit that produced the Universal Declaration of Human Rights and the European Court of Human Rights; and whose nebulous Section 1 gives judges the right to gauge which nominally Charter-guaranteed rights may or may not be “demonstrably justified in a free and democratic society.”

There is a reason why Liberals go teary-eyed on the Charter’s birthday, and why American conservatives have turned their nation’s founding fathers into secular saints, and why, eight centuries later, we still talk about the Magna Carta: Whatever their messy origins, these documents provide us with the language of freedom — a language that has been used for centuries, in different dialects, by ordinary citizens of the Anglo world seeking to fight back against the arbitrary exercise of power by elites. But the only way that language can become reality is if the elites charged with honouring the charter treat their task with deference and humility.

Canadian judges, reflecting on the 30th anniversary of the Charter, should be mindful of this when they are tempted to substitute their judgment for the laws of the land created by elected Parliamentarians.

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